Note of dissent

THE decision of Justice Jasti Chelameswar of the Supreme Court to go public on the need for reforming the collegium has led to a debate within the Bar and the bench on whether he was right in doing so, without quitting office. It is pointed out that by posing himself as the sole defender of the principle of transparency within the collegium, he has unwittingly portrayed its other four members as being against transparency.

Observers of the Supreme Court aver that Justice Chelameswar has only revealed the tip of the iceberg and that had he not openly talked about the lack of transparency, the general public would never have known that the collegium has been malfunctioning. Had he quit in protest against the lack of transparency in the collegium, the issue would not have got the kind of attention it has received and there would have been no pressure for reform, they say.

The history of the Supreme Court collegium since its inception in 1993 following the judgment of the nine-judge bench in the Second Judges case is replete with instances of successive Chief Justices of India (CJI) and would-be CJIs within the collegium using their clout to suppress dissent and presenting a picture of consensus to the outside world.

Justice Chelameswar’s plea to the collegium to evolve a procedure to ensure transparency without waiting for the finalisation of the memorandum of procedure carries an element of urgency, as any inaction on this will prove to be counterproductive, with the collegium becoming unaccountable for its omissions and commissions.

Knowledgeable sources this writer spoke to revealed that successive collegiums had been following the dictum of voting without discussion. This “manufactured consensus” was achieved with the CJI bringing to the collegium meeting the list of names of appointees and transferees without telling the collegium members the reasons for recommending their appointments and transfers. No discussion on the individual merits or otherwise of the candidates likely to be recommended takes place, as the members have no information about them.

In theory, according to the Second Judges verdict, a lone dissenter has the opportunity to effectively exercise a veto over the appointment if he persists with his dissent even if the government asks the collegium to reconsider its recommendation in the light of that dissent. A reiterated recommendation is binding on the government only if it is backed by consensus.

But in practice, a dissenter in the collegium is outnumbered, and in the absence of records of the proceedings, he/she has no alternative but to sign in favour of the recommendation and join the majority. The reason is that the dissenter, even if he/she is keen on dissent, cannot do so in the absence of information about the strengths and flaws of the candidate being recommended or about the merits of a proposed transfer of a judge from one High Court to another.

The sources recalled an incident in which a member of the collegium recently wanted to look at a file pertaining to a candidate during the term of a former CJI. The former CJI told the member that the file was not available for scrutiny. The member had no remedy to this. Those disappointed with the collegium system lament that while the Supreme Court teaches non-arbitrariness to every other authority in the country the rule does not seem to apply to its own collegium. The Central government shares Intelligence Bureau (I.B.) reports of candidates with the CJI before the collegium makes its recommendations. But successive CJIs, according to the sources, have held that they have the discretion to decide whether the I.B. reports can be shared with the other members of the collegium or not. While some CJIs have shared the I.B. reports with other members, others thought they were not obliged to do so.

Adverse I.B. reports

Thus, if a candidate is rejected because of an adverse I.B. report, the other members of the collegium may not know whether the report cast aspersions on the integrity of the candidate. If the I.B’s allegations of lack of integrity against a candidate are based on evidence, then that candidate, even if he happens to be a High Court judge, or a Chief Justice, should be asked to quit instead of merely being rejected for promotion to the Supreme Court.

But the absence of information-sharing among members of the collegium about candidates rejected means that such High Court judges and Chief Justices whose integrity is suspect as per the I.B. reports go on to complete their terms. The collegium is effectively indicating that for the judges and Chief Justices of High Courts integrity tests need not be stringent and they need not resign as they may be left with only a few months to retire.

Keeping records in the collegium meetings, therefore, helps to collect information about candidates rejected for appointment to High Courts and the Supreme Court. If the rejection is mainly for administrative reasons, there is no need to keep such reasons under wraps as judges and Chief Justices of High Courts and Supreme Court judges have different administrative responsibilities.

The sources say that if, on the contrary, the I.B. reports point to the candidates’ lack of integrity, then the information about such district court and High Court judges must be shared with constitutional authorities if not with the general public. They insist that records of the collegium meetings and the I.B. reports of the candidates rejected by the collegium, therefore, must be made available to the Parliamentary Committees or to the President or the Prime Minister.

If no reasons are to be recorded for either rejection or selection of a candidate, and the collegium members are simply expected to say yes or no to recommendations, it makes sense to ask why a member should attend the meeting at all. No wonder Justice Chelameswar feels that at least he can give the reasons in writing in his chamber if he disagrees with a recommendation. He will be able to do so only if he keeps away from the meetings of the collegium.

Aberrations

The collegium system has certain aberrations which have so far evaded public scrutiny. One such aberration came to light when a former CJI, during his term in office, wrote to all the High Court Chief Justices to ensure that when they recommended district judges for High Courts, their performance during the previous three years was assessed by a committee of judges other than members of the High Court collegium. The former CJI, who is no more, also said that a similar procedure should be followed while recommending an Additional Judge for the post of permanent judge. The High Court collegium comprises the Chief Justice and two senior-most judges of the High Court.

This direction of the former CJI was contrary to the Supreme Court’s Constitution Bench judgment in the First Judges case in 1981. In this case, the Supreme Court had held that an Additional Judge was not a probationer and, therefore, asking his colleagues to prepare his performance appraisal would be inconsistent with the principle of independence of the judiciary. This part of the decision in the First Judges case still holds the field and has not been set aside by the subsequent judgments of the Supreme Court in the Second, Third and Fourth Judges cases.

However, as the Chief Justices of the High Court got the directive from the CJI himself, they strictly complied with it and did not have the courage to point out its flaws. Had the collegium been under an obligation to maintain records of its proceedings in a transparent manner, the flaw in the CJI’s directive to the High Court Chief Justices could have been brought to light and corrected in time, informed sources told Frontline .

The suppression of dissent within the collegium is too serious a matter to be ignored. In the Third Judges case, the Supreme Court held that judicial review was available if the recommendation to appoint a judge to a High Court or the Supreme Court was not a decision of the CJI and his senior-most colleagues, which was a constitutional requisite. The Supreme Court granted judicial review even in cases where the collegium did not take into account the views of the senior-most Supreme Court judge who came from the High Court of the proposed appointee to the Supreme Court.

Informed sources also revealed that in a recent instance, a member of the collegium insisted on the transfer of a High Court judge but the other four members opposed it. The dissenting member, who refused to relent despite being in a minority, had his way finally with the collegium agreeing to the transfer. The clout of the dissenting member, who is in the line of succession as a future CJI, was too strong for the other four members to resist.

In 2014, while disposing of a petition challenging the Madras High Court collegium’s recommendation to the Supreme Court collegium to appoint 12 judges to the High Court, the apex court held that the concept of plurality of judges in the formation of the opinion of the CJI, in the appointment process, was an in-built check against arbitrariness or bias. In the absence of proper records regarding the credentials of the candidates recommended or rejected, the nature of agreement among this plurality within the collegium, both in the High Court and the Supreme Court, is open to question.